Sunita Sudam Ranaware vs Rama Vijay Oberoi and Others

R.M. Savant, J.—At the outset the learned Senior Counsel appearing for the Petitioners seeks deletion of all the Respondents except the Respondent No. 1 in the above Petitions. Leave granted. Amendment to be carried out by 15-3-2013. Rule, with the consent of the learned counsel for the parties made returnable forthwith and heard.

The Writ Jurisdiction of this Court is invoked against the common order dated 11-9-2012 passed by the learned Civil Judge, Senior Division, Panvel by which order the Applications Exhibits 160, 178 and 182 filed by the Defendants in Regular Civil Suit No. 766 of 2012 came to be rejected.

It is not necessary to burden this order with unnecessary details. Suffice it to say that in the suit in question the Plaintiff has challenged the Sale Deed dated 30/05/1996 executed in favour of the Defendant No. 4 by the Defendant No. 1. The Defendants therefore questioned the maintainability of the suit on the ground of it being barred by limitation, and therefore filed an application invoking section 9-A of the CPC seeking the framing of a preliminary issue whether the suit is barred by limitation.

Insofar as the Defendant No. 3 is concerned, who is the Petitioner in Writ Petition No. 10368 of 2012, in addition to invoking section 9-A, the said Defendant No. 3 also invoked Order VII Rule 11(d) of the CPC on the ground that the suit was barred by law.

The said Applications Exhibits 160, 178 and 182 were replied to by the Plaintiff by filing a reply. It was sought to be averred by the Plaintiff in her reply that it is from the date of acquiring knowledge of the said documents that the period of limitation would have to be computed and therefore the suit as filed in the year 2012 after the Plaintiff had acquired knowledge could not be said to be barred by limitation. It was further averred that the issue of limitation being a mixed question of law and fact, the said issue could not be framed u/s 9-A of the Code of Civil Procedure.

The trial Court considered the said Applications Exhibits 160, 178 and 182 and as indicated above by the impugned order rejected the said Applications. Insofar as the issue u/s 9-A is concerned, the trial Court has observed that since the issue of limitation is a mixed question of law and fact, the same could not be framed by having recourse to section 9-A of the Civil Procedure Code. The trial Court relied upon the judgment of a learned Single Judge of this court reported in United India Insurance Co. Ltd. Vs. Vulcan Association and Others, . wherein a learned Single Judge has held that the issue has to be determined on the basis of the averments made in the plaint and for the purposes of determining the issue of jurisdiction the court will have to proceed on the footing that the averments made in the plaint were true. The trial Court thereafter has rejected the application filed by the Defendant No. 3 invoking Order VII, Rule 11(d) of the Code of Civil Procedure.

On behalf of the Petitioners the learned Senior Counsel Shri Walawalkar drew my attention to the judgments of two Division Benches of this Court, the first of which is reported in Royal Palms (India) Pvt. Ltd. and Others Vs. Bharat Shantilal Shah and Another ., and the second being the judgment reported in Foreshore Co-operative Housing Society Limited Vs. Shri Praveen D. Desai, Indian Inhabitant of Bombay and Others, . Both the Division Benches in the judgments (supra) have held that the issue of jurisdiction if raised u/s 9-A of the CPC should be decided first and should not be postponed to a later date. The Division Benches of this Court in both the Judgments held that the issue of limitation can be an issue u/s 9-A of the Code of Civil Procedure. The need for deciding the issue, which is raised u/s 9-A as a preliminary issue is laid down by the Apex Court in the case of Meher Singh Vs. Deepak Sawhny and Another, . The Apex Court has held that if the issue relates to the jurisdiction of the Court or to the bar of the suit, the said issue has to be decided as a preliminary issue u/s 9-A as the rights of the parties would then get crystallized insofar as the said preliminary issue is concerned.

Per contra, the learned counsel appearing for the Respondent No. 1 Shri Godbole sought to justify the impugned order. The learned counsel would contend that the trial Court was right in rejecting the applications in the context of the fact that the issue of limitation is a mixed question of law and fact. However, the submission of the learned counsel for the Respondent No. 1, in the face of the judgments of the two Division Benches of this Court was not made with any degree of conviction.

Having heard the learned counsel for the parties, in my view, in the light of the judgments of the two Division Benches of this Court in Royal Palms (India) Pvt. Ltd. and Foreshore Co-operative Housing Society Ltd. Bombay (supra) the impugned order in so far as it rejects the application for framing of a preliminary issue of the bar of limitation u/s 9-A of the CPC would have to be quashed and set aside and the Application Exhibit 160 would have to be allowed to the said extent. However, insofar as invocation of Order VII, Rule 11(d) of the CPC in Writ Petition No. 1068 of 2012 is concerned, since the learned Senior Counsel appearing for the original Defendant No. 3 submits that the Defendant No. 3 would not press framing of issue under Order VII, Rule 11(d) of the Code of Civil Procedure, it is not necessary to consider the said Application in the said context. In the light of the aforesaid facts, the above Petitions succeed to the extent that the impugned order is quashed and set aside, the Application Exhibits 160, 178 and 182 would resultantly stand allowed. The trial Court is directed to frame the issue as to whether the suit is barred by limitation as a preliminary issue u/s 9-A of the Code of Civil Procedure. The trial Court would offer an opportunity to the parties to lead both oral as well as documentary evidence in respect of the said issue. The trial Court to decide the said issue of limitation within a period of three months of the parties appearing before it. The parties to appear before the trial Court on 25-3-2013. Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs of the present Petitions.